Chennai: The Madras High Court said if something is not received well and it is inappropriate and felt as an unwelcome behaviour affecting the other sex, the women, it would fall under the definition of “sexual harassment” irrespective of intent under the provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) (PoSH) Act.
Justice RN Manjula said this while hearing an appeal filed by multinational corporation HCL Technologies Ltd against a Chennai labour court order reversing the findings of the Internal Complaints Committee (ICC) constituted under the PoSH Act.
Three women employees made sexual harassment complaint against a senior employee in supervisory position
Three women employees made a sexual harassment complaint before ICC against N Parsarathy, who was working as a Service Delivery Manager in HCL Technologies since the year 2016 and was in a senior and supervisory position. While one woman employee alleged that he indulged in an unwelcome physical contact by hovering close to her when she was seated, the other alleged that he had verbally harassed her by repeatedly asking her physical measurements and making her to feel extremely uncomfortable and had leaned closed to her, touched her shoulder and asked her to remove her garment for the purpose of measurement. The third said he inquisitively asked her about her menstrual cycles.
ICC found behaviour of senior employee amounted to sexual harassment
On receiving the complaints from the complainants 1 and 2, an enquiry was initiated and the ICC found that the behaviour of Parsarathy was highly inappropriate and it amounted to sexual harassment. Later, the company terminated him from the service.
Labour court reversed ICC findings
The labour court reversed the findings of the ICC holding that Parsarathy was not given the CCTV footages and was not given with fair opportunity of hearing and consequently set aside the harassment complaints.
What did senior employee say?
The senior employee defended himself before the High Court stating that it was part of his work to observe the team’s work without disturbing them and he would usually observe the men’s work also by standing behind them.
Definition of sexual harassment in PoSH Act has given significance to act than intention behind it: High Court
“The respondent (senior employee) who has got his corporate experience should have known to execute his functions without making the women employees embarrassed or frightened due to his actions. The complainants did not state something in the air but have given details of the incidents and have also stated how it was felt by them. If something is not received well and it is inappropriate and felt as an unwelcome behaviour affecting the other sex namely the women, no doubt it would fall under the definition of “sexual harassment”,” the High Court said
“The definition of “sexual harassment” as it is seen from the PoSH Act has given significance to the act than the intention behind the same. In the event of such actions are reported as criminal offense then the prosecution may be expected to prove the intention also. It is the fundamental discipline and understanding with which the employees of different gender are expected to interact with each other where decency is the yardstick and nothing else. While speaking about the decency it is not the decency which the respondent thinks within himself, but how he makes the other gender to feel about his actions,” the High Court further added.
Senior employee caused a feeling of embarrassment and discomfort in the mind of complainants: High Court
The High Court further said that the act of Parsarathy has caused a feeling of embarrassment and discomfort in the mind of complainants and he did not deny the fact that he was standing near the complainant but had justified that it was his duty to supervise the works of the complainant. So the CCTV footage and the visuals cannot help him to prove or disprove the intention and all that can be understood is how it was felt by the recipients who are the complainants, it added.
“As the ICC had rightly understood the scope and nature of the enquiry and adopted the right mode suiting to the purpose of enquiry and struck a balance and the reasons recorded for arriving at the conclusion is also acceptable, I do not find any valid reasons for interference with its report,” , the High Court said while setting aside the labour court order.
